WHO OWNS A DRAWING?
The scenario is a common one: an investor has an opportunity to develop a block of flats. An Architect is appointed to design the layout of the flats, who proceeds to issue drawings of the flats to the investor. The investor pays the Architect for her services and then proceeds to have the flats constructed in accordance with the Architect’s drawings.
The development is a success, and the investor now wants to replicate it at a different location. She has paid for the drawings from the Architect; why should she now pay professional fees for essentially the same work? So, she purchases more land and uses the same drawings to replicate the original development, but does so without the knowledge of, or permission from, the Architect.
Is she within her rights to do so?
What is copyright?
Asked in another way- who factually owns the rights to use drawings that professionals in a built- environment project have been paid to produce?
Taking a step back, we need to consider what the drawings actually represent. In the circumstances, they are the physical representation of the application of skill and expertise by the Architect in designing the layout of the flats.
This then introduces the idea of copyright. The legal concept of “copyright” is a nuanced one that involves complex legal principles of ownership and rights and which is legislated in the form of the Copyright Act 98 of 1978 (the Act). Suffice it to say, “copyright” essentially affords the copyright owner the right to prohibit others from using and copying her work without her authorizing them to do so.
Perhaps the most crucial concept to understand about copyright in general is that it does not protect ideas but rather the physical representation of those ideas. It follows therefore that the “work”
copyright seeks to afford protection to is not merely limited to the physical object, but also incorporates the skill, labour and application behind the production of that object1.
The Act provides that the works that are eligible for protection under copyright include literary works, artistic works, musical works, cinematographic films, sound recordings, broadcasts, programme- carrying signals, published editions and computer programmes.
The Act goes further to define an artistic work as including “paintings, sculptures, drawings, engravings, and photographs”, where drawings are defined to include any diagram, map, chart or plan. In other words, an artistic work would include a technical drawing in its definition and does not require a creative or objectively appealing quality to be attached to the work for it to be protected.
What are the requirements?
Accordingly, we arrive at the requirements for a copyright to vest in a work- it must be original and it must have a material embodiment. In other words, the work must:
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embody original skill and labour in execution thereof; and
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be physically recorded in some manner or another.
Having established that the Architect’s drawings would qualify for protection under copyright laws, we may finally ask who holds the copyright. Here, we differentiate between the “author” and the “copyright owner”. In general, it is deemed that the author (being the person responsible for the creation of the subject matter) will be the copyright holder- the person in whom vests the authourity to permit the use and/or copying of the work itself.
A notable exception would be where the author creates the work under a contract of service or apprenticeship. An example of this would be where an architect produces a drawing while under a contract of employment specifically to produce architectural drawings. In those circumstances, the “copyright owner” would be the employer and not the architect (the latter, however, would still be regarded as the author thereof).
However, it has been conclusively established in our law that an Architect appointed to undertake a design and produce the necessary drawings is done under a contract of work, which does not qualify under this exception3. Therefore, the copyright clearly vests in the Architect.
Obviously, a copyright protects the unauthorised copying of the drawings. What about the circumstances wherein the drawing is not actually copied but rather where the original versions that were issued to the investor are used in the second development; is this an infringement of the copyright? To construct a block of flats is certainly not the same thing as copying a drawing, no matter how far the definition of “copy” is stretched.
1 Galago Publishers (Pty) Ltd & another v Erasmus 1989 (1) SA 276 (A)
2 Appleton & another v Harnischfeger Corporation & another 1995 (2) SA 247 (A)
3 Marais v Bezuidenhout 1999 (3) SA 988 (W)
Without doubt, this does qualify as an infringement. The Act provides that the nature of a copyright in artistic works (which a technical drawing qualifies as) includes the exclusive right to do or authorize that work to be copied or an adaptation thereof to be made. An “adaptation of the work” for these purposes would include a “transformation of the work in such a manner that the original or substantial features thereof remain recognizable”.
It is clear from the above analysis that the investor would be in a clear violation of the Architect’s copyright in respect of her drawings and the Architect would have a claim against the investor in respect of this infringement.
Andrew Seymour
Andrew Seymour is an admitted practicing attorney as well as a Professionally Registered civil engineer (B.Sc. Civ Eng) and with over 17 years' experience working in the Built-Environment Industry.
This article is intended for information purposes only and should not be taken as formal legal advice.
For more information, contact us on info@seymours.co.za or 074 125 1622 to arrange a consultation.
www.msattorneysinc.co.za
Andrew Seymour °
B. Sc Civ Eng, LLB, Pr. Eng, AAArb Practicing Attorney of the High Court of SA